I concur in Mr. Justice Laughlin’s opinion. It is quite clear that the contract sued on was a personal contract of the defendant’s. As administrator without special leave of the surrogate he had noth-' ing to do: with the real estate' and no power to make a contract respecting it. It purported to be a contract of the estate and the administrator by- making it implied that he as administrator was authorized to make such a contract and was responsible- to the defendant for any damages sustained in consequence of a breach of. that implied agreement. There is some question whether, under those circumstances, an action for specific performance could be sustained, but as the complaint set up a good cause of action for damages at law and an answer had been interposed, if the plaintiff was not entitled to recover on the equitable cause of action he was still entitled to have the case retained so that he could be awarded damages for. a breach of the contract. There was.no objection either in the answer or upon the trial to trying the action as one in equity, -nor was there a demand for a trial by jury. I think upon the evi- ■ dence the court was justified either in awarding judgment against *833the defendant for the amount paid on the execution of the contract with such damages as plaintiff was entitled to for breach of the contract, or if the defendant demanded á jury trial, sending the case to a Trial Term for trial.
Judgment reversed and new trial granted, with costs to appellant to abide event.